Ameropan Oil Corp. v. Illinois Commerce Commission

July 21, 1998

AMEROPAN OIL CORPORATION, INTERVENOR-PETITIONER-APPELLANT,v.ILLINOIS COMMERCE COMMISSION, AN ADMINISTRATIVE AGENCY IN THE STATE OF ILLINOIS, COMMONWEALTH EDISON CO., AND THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, RESPONDENTS-APPELLEES.

The opinion of the court was delivered by: Justice Tully delivered the opinion of the court:

ComEd is a public utility regulated by the ICC according to the Act (220 ILCS 5/10-101 (West 1996)), and it is responsible for providing adequate, reliable and efficient service to customers in northern Illinois. It supplies electric power through its transmission system, which consists of 5,500 miles of lines carrying power at voltages of 138 kilovolts (kV) and above. The 138 kV system supplies downtown Chicago primarily through twelve 138 kV transmission line circuits, two of which are supported by the power line at issue in this case.

On January 27, 1993, the ICC issued to ComEd a Certificate of Public Convenience and Necessity (certificate) which authorized ComEd to construct, operate, and maintain a transmission line between two of ComEd's generating stations named Crawford and Fisk. The line was approximately 5.6 miles long and was entered into service soon after its approval in 1993. Since that time, the line has been one of several means of providing power to the central business district of Chicago.

The line ran in an east-west direction and was located north of Interstate 55 (I-55), also known as the Stevenson Expressway. The line made two crossings over I-55, one on either end of a 2,350-foot segment of the line, located south of I-55 near Western Avenue. That segment made a detour around petitioner's oil tank farm. The crossings were made pursuant to a permit issued by the Illinois Department of Transportation (IDOT). IDOT provided that the permit would terminate in anticipation of its then-planned construction of fly-over decks over I-55. The permit required ComEd to "actively pursue permanent relocation of said high voltage line to eliminate the necessity of its two temporary crossings of Interstate 55 [, to] report to the Director of Highways of the Department quarterly on the progress of the permanent location, and to remove the crossings not later than December 31, 1998." On February 15, 1995, IDOT notified ComEd that it would terminate the crossing permits and require ComEd by October 1996 to relocate the 2,350-foot segment of the line which was originally located south of I-55.

ComEd then investigated alternatives for relocating the line. In its August 15, 1996 ICC petition to amend the 1993 certificate, it proposed to relocate the affected 2,350-foot segment of the line to an area north of I-55, along existing Santa Fe Railroad rights-of-way on which other parts of the line were already built. The proposed route for the line would run near petitioner's oil storage tank farm. ComEd asserted that this alternative was the least-cost option, and that it was the shortest route and occupied existing rights-of-way which were available for voluntary acquisition. It also argued that the alternative route allowed construction to be completed before the summer of 1997. ComEd submitted that the proposed route met all applicable safety standards. According to ComEd, petitioner's safety concerns regarding the line's crossing the storage tank farm were unsubstantiated. The other alternative that ComEd considered was located north of petitioner's oil storage tank farm. ComEd did not select that alternative because it believed it would cost more than the first alternative, would require more time to acquire, and would present a clearance problem with a billboard.

Petitioner and the City of Chicago were granted leave to intervene in the 1996 proceeding to relocate the line. Petitioner opposed ComEd's petition, and contended that the proposed relocation would place the line dangerously close to the oil storage tanks. Petitioner and ComEd filed written testimony. An ICC hearing examiner conducted an evidentiary hearing on January 16 and February 18, 1997. Petitioner and ComEd presented testimony. The evidence showed that ComEd wrote in a June 12, 1992 letter to the Office of the Mayor of Chicago that "[t]he portion of the proposed line west of Western Avenue must cross and extend along the south side of the Stevenson Expressway because there is insufficient room between [the oil tanks] on both sides of the [railway] to provide clearance to the tanks to meet NFPA [National Fire Protection Act] and City of Chicago regulations." John Schuh, ComEd's Real Estate Administrator for Acquisitions and Permits, testified that on January 13, 1993, ComEd wrote to IDOT that the reason for the permit was that the "transmission line cannot continue on the Santa Fe Railroad property because [of] the gasoline tank clearance required by the 1990 [NFPA]."

Schuh also testified that ComEd searched for alternative routes, but there were no feasible routes for purchase. According to Schuh, ComEd would not be able to secure a route in time to have the line in service by the summer. He also testified that the proposed relocation would not interfere with any commercial airports or heliports, would not effect any historic or archeological property, and would not cause the removal of any agricultural land.

Mark Lorenz, the Siting and Estimating Engineer in the Right of Way and Site Selection Department of ComEd's Transmission System Area, testified that the removal of the 2,350-foot segment would be completed by October 1996 and that the removal would not effect customers during the winter months. However, according to Lorenz, the relocation needed to be completed before the 1997 peak load season. Lorenz explained how the relocated line would be constructed, and stated that the line would comply with all applicable ICC regulations and orders. According to Lorenz, the proposed relocation route was ideal for construction, minimized land use impacts, was already covered by rights-of-way held by ComEd, and permitted relocation at the least cost. He testified that other than the proposed relocation route, ComEd considered the only other potential route, which would cross and parallel a canal and then cross back to the existing right of way. Lorenz testified that the alternative route was not feasible because the land rights were not readily available for voluntary purchase. In addition, that route would have physically conflicted with existing land uses, which would have increased the cost of the route. The proposed route would cost approximately $1.1 million, while the alternative route would cost approximately $3.8 million more than the proposed route. Finally, Lorenz testified that the proposed line would not pose a hazard to petitioner's oil storage tanks because the line would meet all applicable safety standards and would be designed in accordance with accepted engineering practices.

Richard Kraus, an engineer with Petroleum Safety Consultants, testified for petitioner. Kraus presented several reasons why he believed that the proposed line would unfavorably effect the oil storage tanks, including a likelihood of oil tank fires which could cause power outages. Clement Mesavage, Jr., an engineer who provides consulting services regarding bulk liquid terminal facilities, agreed with Kraus and provided additional testimony that oil tank fires could effect the line and create power outages. Also, he testified that in his experience, high voltage lines are not typically found near oil tank farms.

ICC staff expert witness Jack McDonald, a utility engineer in the Engineering Department of the Commission's Public Utilities Division, also testified. McDonald stated that the ICC had adopted the National Electrical Safety Code, and that based on the hearing testimony, he concluded that the clearances for the proposed line were adequate. He recommended that the line be relocated in accordance with ComEd's proposal.

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